governor said yes. that is fair. that is fair. if you have that point of view -- i am serious, and you understand why they are so desperate to hold on to a tax cut the wealthy are not asking for, but they know they do not need it, and they know it is time for them to chip in. that is all you need to know, though, as to why the governor wants to make sure that he holds up tax cuts for your parents unless you continue to fund a $500 billion tax cut for 120,000 families. yet the thing that we learned is governor romney is no longer for that tax cut that he has been talking about for a year and a half, the $5 trillion tax cut. it's evaporated.

i do not know where it went. he said that tax cut he is calling for will be fully paid for by doing away with exemptions for the very wealthy people. the one exemption, the one loophole he has made clear that you cannot get rid of is the one that allows him to pay 14%. when asked what other loopholes he would cut, and you heard it last night, they could not name one, not one. that is why, folks, the bipartisan group called the tax policy center made up of former bush and clinton economic experts, that is why they said that the romney-ryan tax plan would in fact raise taxes on middle-class families with a child an average of $2,000 a year. $2,000 a year.

by the way, every model looked at, from the american enterprise institute, says the same thing. folks, it is time to lift the burden of the middle class, not double down on the great recession that hit them. [applause] as a consequence of the great recession, family, middle class families lost $16 trillion in wealth, mostly in equity in their homes, they saw them evaporate, and their pension plans and their 401-k's. it is time for everybody to chip in, but we should not be surprised at their continued opposition to everyone chipping in.

these are the folks who talked about 47% of the american people being unwilling to take responsibility. by the way, the congressman from wisconsin in his speech to "the spectator" said 47% of americans are these takers. i do not know who these people are they're talking about. the people of the neighborhood i grew up in, 82% pay their taxes at an effective rate higher than romney pays his taxes, over 10% of them are senior citizens on social security. the rest are disabled veterans and military personnel fighting now. that is the 47%. the 47% this nation depends on, to build this country. folks, it is about time governor romney takes some

responsibility. takes some responsibility to help the american people, the middle class, instead of lining up to sign a pledge to a guy named grover norquist, sign a pledge -- it would be funny if or not so serious. they signed a pledge. the congressman can tell you. every republican in the house signed a pledge that we will not raise taxes $1 on the wealthy, and, ladies and gentlemen, it is time romney and ryan and the republican congress to take a pledge to the middle class people saying we are going to level the playing field, we will get you back in the game, we will give you a fair shot again. it is time to acknowledge what got us into trouble in the first place.

[applause] they talk about this great recession as if it dropped out of the sky. where did it come from? as my granddaughter once said, did casper the ghost do it, pop? it came from their policies of shredding reasonable regulations on wall street, allowing banks to write their own rules, continuing a trillion-dollar tax cuts for the wealthy. that is what got us here. ladies and gentleman, they cannot take responsibility. if anybody had a doubt about what is at stake in this election, when it comes to women's rights and the supreme court, i am sure they were settled last night. congressman ryan made it clear that he and governor romney are prepared to impose their private views on everyone else. it was made clear last night that they do not believe in protecting a woman's access to health care. it was made very clear that they do not believe a woman has a right to control their own body.

that is between she and her doctor. and now they say they are willing to make an exception in the case of rape and incest. ladies and gentlemen, congressman ryan was a leader in the house and even blocked those exceptions. now, these guys pledged that they are going to defund planned parenthood. by law, it cannot perform abortions. after last night, if you have any doubt about the caliber and the philosophy of the justices they would appoint to the supreme court, i imagine they are pretty well past. can you imagine the next president is likely to have almost one probably two supreme court appointees. roe v. wade is hanging. do you think there are going to appoint justices to the court that will not join scalia and others to overrule roe v. wade?

single most consequential decision a president makes other than going to war is the appointment to the supreme court, because those appointments live long after any president is gone. ladies and gentlemen, congressman ryan voted against the lily ledbetter act. all it did was -- it sounds ridiculous, but it only gives a woman a cause of action if she finds she was cheated in her employment. the statute of limitations did not prevent her from bringing cheated.hen she was she i we're pushing hard for a fair pay act. i happen to think my daughter should get paid exactly as any man is being paid at a job she is doing. [applause] we have proposed equal pay

legislation. they are against it. they want to turn back to the insurance companies, the decision on whether a woman continues having to pay 50% more for her health care, where once again pregnancy will be a pre-existing condition. ladies and gentlemen, they are holding hostage one of the proudest accomplishments of my career, the violence against women act. they're debating whether or not we need this after 20 years. folks, if i leave you with no other message today, i want you to remember this one -- obama and biden are absolutely, positively, firmly committed to ensuring that our daughters and my granddaughters have the exact same rights and opportunities to control their lives as my sons and my grandsons -- exact same rights.

[applause] make no mistake about that. these guys have a social policy out of the 1950's. folks, the american people have been through an awful lot the last four years as a consequence of this great recession. like always, the american people did not give up. they got up. the american people did not lose faith. they fought back. folks, there is no quit in america. there is no quit in america. there never has been. and i have never seen two candidates for the highest office in the land who are more negative about this country and its prospects than the people we are running against. all you hear from them is talk about a culture of dependency, america in decline.

i do not recognize the country they talk about. i really do not. not where i come from, not where you come from. i do not see americans who think they are dependent. i see americans who are looking for nothing more than a shot. they are not looking for a handout, they are looking for a shot, a level playing field. how could these guys have such a profound misunderstanding of the people of this country? the american people are so much better, so much stronger, so much more responsible than these guys give them credit for, and i have got news for governor romney and congressman ryan -- america is neither dependent nor is it in decline, and if they would get out of the way, if they would get out of the it way with these policies

out of the 1950's, we would be raging back. my distinct message to congressman ryan and governor romney, gentlemen, it has never, never, never been a good bet to bet against the american people. you always lose when you bet against the american people. folks, we need you. we need you to have as much faith as we have in the american people. we need you to stand up. we need your support. we need you to help us win wisconsin, because if we win wisconsin, we win this election. [applause] god bless you, and may god protect our troops. thank you. thank you. [applause] ♪

♪ if you are tired of the same old story higher will be here when you are ready -- i will be here when you are

ready ♪ ♪

the sameare tired of old story, i will be here. if you are ready to roll with the changes, roll with the changes keep on rolling roll with the changes oh, baby, you've got to roll

with the changes keep on rolling ♪ ♪

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head ok my hand take a load off ♪ ♪ i picked up my bag and went looking for a place to hide in the desert, walking side by side c'mon, let's go downtown i got to go but my friends can stick around take a load off, baby, take a load for free ♪

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of believe it is about time you must be the one the gospel for everyone. take a load off, baby take a load off for free ♪ ♪ it's your thing do what you want to do it is your thing

sock ittell you who to to if you want me to love you, maybe i will. dealt, it ain't no big it makes me no difference to you give your thing to do what you want to do whon't tell you it is your thing to do what you want to do ♪ ♪ lord have mercy ♪

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will be together every day ♪ ♪ did i tell you i need you every single day of my life? ♪

>> take a look at the debate hub . see individual clips of the question. on tuesday, you can see live behind-the-scenes coverage. what and engage. republican presidential candidate mitt romney and vice presidential candidate paul ryan held a joint campaign event in lancaster, ohio. it was their first campaign appearance bolling the vice- presidential debate. joining them is senator portman. [applause] >> are you ready to win? we have to win.

it is too important to our families, community, and country. we cannot afford another four years of barack obama. we all want to win. we have to win. let me ask you something today. are you planning to do everything you can in the next 25 days to ensure a victory in the key state of ohio? [applause] are you willing to make phone calls for mitt? are you willing to go door to door? are you willing to put up one of these signs in your yard for mitt? i need you to early vote. go to the board of elections on monday morning. you can vote now. that insures you will have plenty of time on election day to help us get other people to vote. will you do that?

i think when you talk to people, you will find they're paying attention. one reason is we have had to the great debates in the last eight days. do you agree with me on that? [applause] the american people are seeing what the comeback team is all about. last night, we had a terrific performance from paul ryan. on the stage, the leader was paul ryan. joe biden said a lot of interesting things. one was at a time of increasing danger around the world, he said we ought to be cutting our military. specifically, he said we do not need any more m-1 tanks.

guess where those are made? right here in ohio. we need them because they're part of the greatest military on the face of the earth. they will insure we have a military second to none to keep the peace. we need m-1 tanks. say it ain't so, joe. we also saw on the stage a guy who understands how to get america back on track. he explained why it is so important for us to have a change in direction. he laid it out an agenda to move america afford. the comeback team is here. we need them now. health news welcome the next vice president -- help me to welcome the next vice-president of the united states, paul ryan. >> [cheers and applause] thank you.

how are you doing? look at that. o-h i-o. >> i love that. it is fun. i just saw in miami sweat shirt. i spent three years there. it is great to see that. i have my lucky buckeye with me. he had this in his pocket throughout the entire campaign in 2010. he said it brought him great luck and a victory in ohio. you will help us. this will bring us the victory in ohio. [applause] lancaster, thank you for having us. you have a huge choice to make. we have the big trees to make. -- we have a big choice to make. i think we saw a sign of it last

night just like we saw a week ago. they are offering no new ideas. the president is simply saying more on the same. hope and change has become attack and blame. when he was running for president carter years ago, barack obama gave a huge speech. he said if you do not have fresh ideas, use still tactics to scare voters. if you do not have a record to run on, if you pay your opponent as someone people should run from. you make a big election about small things. ladies and gentlemen, that is what barack obama said of his opponent four years ago when he ran for president. that is exactly what barack

obama has become now as president. we had a chat about libya and benghazi. we mourn the loss of these four brave americans. but talking about blaming, first they blame a youtube video and nonexistent right. when the country is getting upset, they blame romney and ryan for getting people upset. they keep changing their story. this is not leadership looks like. we need clarity, not confusion. we need accountability and no more excuses. this tragedy would be troubling in and of itself and tragic in and of itself. but unfortunately we are witnessing the unraveling of the

obama foreign policy. when you say it is ok to impose devastating cuts on our military or that we do not need any more m-1 tanks, we are projecting weakness. when we project weakness abroad, our enemies become more brazen. they are more likely to test us. our allies are less likely to trust us. as hot spots are growing abroad, the economy is not growing at home. that is the problem we have to focus on. the economy is growing slower than last year. last year it grew slower than the year before. all the obama is offering is more of the same. we have a big choice to make. do we want more stagnation that fosters dependency or do we want a growing economy that creates

opportunities and jobs? [applause] in a nutshell, we need leadership. look at the guy over my shoulder right here. [applause] if you look at this man's life story, one word comes to mind. leader. this is a man who turned around the olympics, turned around struggling businesses. by the way, being successful in business is a of thing. there is nothing wrong with that. we want more people to be successful. we want more of you to have prosperity with jobs with higher take-home pay. we want people to grow. when america has a jobs crisis, it would be nice to have a job creator in the white house.

this is a man who has proven to get things done. when he was governor of massachusetts, he cut taxes 19 times. he balanced the budget without raising taxes. unemployment went down. household income went up. this is a man who knows how to turn things around. after getting the runaround for itr years, don't you think is time for america to have a turnaround? we will not duck the tough issues facing our country. if we do not tackle america's problems, they will tackle us. we will not spend the next four years blaming other people. we will take responsibility and get the job done. we will not try to transform this country into some think it was never intended to be. we will reply our founding principles and make america what

it was meant to be. the land of opportunity, freedom, and liberty. the moment is coming. it is less than one month away. we have a real leader, the perfect person where the man and the moment are meeting preclude well. that means right here in ohio, you have the ability, responsibility, and opportunity to save this country, and get it back on the right track. you will do that by electing mitt romney the next president of the united states. [applause] >> thank you. thank you. what a welcome.

[applause] thank you to the congressman for being here and welcoming you here today. thank you to the senators. thank you for the great vice- president. he is going to be terrific. [applause] it is good to be back. you may say, i do not remember seeing you here before. but i was here a long time ago. my very first assignment at my first job was to come to lancaster. i am serious. it was to do some work and a little company called anchor hocking. for six months, we would fly into columbus and drive here. i learned something about standing next to the big glass furnaces. it got really hot. i learned about the machines.

i saw an extraordinary community that came together to rebuild a great enterprise. it is good to be bought. this is our comeback team. -- it is good to be bought. this is our comeback team. we're going to bring back america. -- it is good to be back here. we're going to bring back america. i have been back and forth across ohio. this week, i was in florida and iowa. i was in north carolina and virginia. there is a growing crescendo of enthusiasm. people recognize this is not an ordinary campaign. this is a critical time for the country. there is more energy and passion. people and getting behind the campaign. [applause] we will make the country strong again. part of that came from last night. we got to watch this guy debate. there was one person on the stage with thoughtfulness, who

was respectful, and was steady and poised. there was one person you would want to be with if there was a crisis. it is this man right here. [applause] when the moderator asked how to get the economy going, one person on stage just attacked. but this guy stood up, well, he was sitting down. metaphorically, he stood up and went role of the things he would do to get the economy going. it is our job to get the economy going with more jobs for the middle class and more take-home pay. we will protect our economy by putting in place that plan. [applause] i also had a debate about a week ago. [applause]

i enjoyed the experience. we got a chance to talk about differences. i got to ask the president some questions a lot of people have wanted to ask him. why would 23 million americans out of work when he took office, instead of focusing on getting them jobs, why did he focus on obamacare? i got to ask him questions like that? why is gasoline so expensive, almost twice as expensive as when he took office? why did he cut in half the number of permits for drilling on public land and water. i got to ask him about the deficit spending. i asked him why he spent $90 billion sending money to bring energy companies, many owned by friends and contributors of his. we heard what he had to say or not say.

i think we boiled it down to this. more recently, he said you cannot change washington from the inside. you have to change it from the outside. we will give him that chance on november 6. [applause] there were a couple of places where we agreed. we agreed we would take this country in very different directions. he points out, actually it was the vice president appointed out the truth, but they are planning on raising taxes to dollars trillion with the obamacare taxes. there is no question they are spending. the interest on the debt they have announced -- amassed will cause them to raise taxes on the middle class. i make this commitment to you. under no circumstances will i raise taxes on middle-class americans. [applause]

under his path, we will have obamacare installed. let me tell you what that means. the bureaucrats will tell you what treatments you can have. your health insurance premiums are going to be $2,500 more expensive. the president tells you all of the three things you are getting with obamacare. those three things come with a 25 under dollar extra charge. -- the president tells you all of the free things you are getting with obamacare. those free things come with a $2,500 extra charge. i will tell you what you are getting. i hope you listen to our debates. the president -- and i hope that you will listen carefully to our debates, because the president is pointing out they are cutting $716 billion from current medicare beneficiaries. under our team, we will honor the promises made to our seniors.

and one more thing, the senator has in his budget cutting the military by hundreds of billions -- the president has that, not the senator. in addition, there was the sequester idea, they will cut about a trillion dollars of the military. the secretary of defense said those cuts would be devastating to america. to the military, the national security. i will not make those cuts. i will not cut our military. i will keep its second to none in the world. [cheers and applause] and when it came to jobs, both last night with president biden and in my debate with president obama, they did not have a plan for creating jobs for middle income americans. they say they care about middle income americans, and believe they do, but they don't want to do. what to do.w

they say we will have another stimulus. how did the last one work out? and then it will hire more government workers. there is nothing wrong with government workers, but that will knock the economy going. and then they have plans to make investments, they say. a friend of mine said that they don't want to pick winners and losers, they just pick losers. and then they want to raise taxes. i don't think anyone believes raising taxes creates more jobs. whatjust don't understand it takes to get this economy going, and we have a plan. five key elements. paul spoke about them last night. number 1, we are taking full advantage of our oil, coal, natural gas, nuclear, renewables. we will take advantage of our energy, and that will protect and grow energy, jobs, and also manufacturing. there are a lot of manufacturing jobs, including in the glass industry, that use a lot of energy. when energy is less expensive, jobs come back.

under president obama, we have lost 600,000 manufacturing jobs. we want to bring jobs back to america. that is number one. number 2, we're going to make trade work for us. we will open up more markets for our goods. but if people cheat like china has cheated, we will stop it. number 3, when training programs that help our people have the skills they need to succeed and i want our school to be giving our kids the kind of education they need for the jobs of tomorrow. that means we have to put our kids first and parents first and teachers first. the teachers union will have to go behind. [cheers and applause] number 4, you will not get business people to risk their life savings to start a small business or big companies to come to america, built a big factory, hire americans if they think we are on the road to greece. if we keep spending more than we taken, that is where we're

heading. we will cap federal spending and get us back on track to a balanced budget. [cheers and applause] number 5, number 5 is this -- we are going to champion small business. we're going to help small business people build their businesses. to do that, we will keep their taxes down and get regulations to encourage growth and take that big cloud of obama care of small business. we're going to help small business in america. [cheers and applause] we do those five things and 12 million jobs grow in america and take home pay starts going up again. do you realize under president obama every year, not just his first year, every year the median income in america keeps going down, down, down. the middle class in america is getting crushed, squeeze,

because the income is down. at the same time, gasoline prices are up, food prices are up, health insurance premiums are up. it is tough being middle-class even if you have a job in america. we're going to work to create more jobs and more take-home pay. that is our passion. that is why we are in this race. we need a strong america so we can provide for our families and the future of this great country. [cheers and applause] and i want you to know, i am confident that we are going to overcome the challenges we have. i have seen the heart of the american people through my life. i know something about the character of those who have great qualities of the human spirit in their heart. we stood up, regardless of the challenges america has faced, we have been there and overcome them. i am reminded of a couple of experiences. one was at the republican

convention a few months ago. i met jane horton there. her husband, a sharpshooter in afghanistan. she is packing a birthday box for him in afghanistan and a knock came on the door to inform her that he had been killed in afghanistan. instead of becoming despondent and depressed, she has decided to devote herself to families of those who have lost others in conflict. on the day of her husband's funeral, some of those misguided souls came there to protest the funeral. she was asked, what do you think of these people? she said this, "chris died for them to be able to protest." isn't that an amazing american spirit, amazing woman? [applause] i love our men and women in uniform.

and their families the sacrifice so deeply for this country. i love when of the lines from a national hymn of hours. o beautiful, for heroes proved in liberating strife, who more than self their country loved it, and immersing more than life. -- mercy more than life. that will are veterans of the armed services please raise your hand so we can recognize you? thank you. [cheers and applause] thank you. thank you. let me mention another experience i had. that was some years ago. i was working with the boy scouts of america at the time, and it was at a court of honor. for those who don't know what that is, that is where the boys got to get their eagle words or other rewards. alcoa was set up in the gymnasium. -- a formica table was set up in the gym.

i was seated at the table and there was a fly ball with the flag next to me. the person who was speaking with the boy scout scoutmaster from monument, colorado. he said his boy scout troop wanted to have a very special american flag. they bought one. they have one above the state capitol and had it flown above the national capital in washington, d.c. when it came home, they said let's have it go up on the space shuttle. if they contacted nasa and ask them to dig the flag of the -- take the flag on the space shuttle. i am sure they told them that space is a premium. not a lot of room for souvenirs on the space shuttle, but they took the flag. he said, you cannot imagine how proud our boys were from their school rooms to watch the shuttle go up into the sky on tv, and then they saw it explode in front of their rise. -- their eyes. the scoutmaster called nasa a couple weeks later. the said did you find a remnant of our flag? they said, no. he said he called every week, several months, called and called, nothing. then in september, he said he was reading a newspaper some of

the debris found from the challenger disaster, and they mentioned something about a flag. he called and said, did you find our flag? they said, as a matter of fact -- they got together. nasa came together with the boy scout troop and presented the boys with this plastic box. they opened it, and there was their flag in perfect condition. and then he said this. he said, have that on the flagpole next to mr. romney on the table. i got the flag and it was like electricity ran through my arm. for me, that flag represented the men and women who put themselves in harm's way, in our space program, in our military. those who reach for learning, who live for something bigger than himself, who look for discovery, to put themselves out there. it reminds me of the people when they graduate from college or high school who say, i am going to put aside my career for

a while and go into the military, serve our country. it reminds me of the dads who were working two jobs so they can make enough money so their kids have the kind of clothing the other kids are wearing at school. it reminds me of those single moms who are wondering how they can put food on the table and script and save to do so. the couples who say we're not exchanging christmas gifts among ourselves because we want our kids to have christmas. this is america. this is who we are. we are people who live for big things. the care about the future, for our kids, for our nation. for liberty. this is a critical time for america. it is a time we have to decide what we're going to be. president obama wants a bigger and bigger government, more and more encompassing, more interested in our lives. that is not what makes america america.

it is freedom that drives america. it is free people. [cheers and applause] we stand on the shoulders of the greatest generation. my mom and dad, your moms and dads, they fault, protected us, gave as a nation that is free and prosperous, the most prosperous nation in the world. they held a torch for the whole world to see, a torch of liberty and hope and opportunity. there are not as many of them as there were. they cannot hold the torch as high as they used to. it is our turn. we have to grab that torch. it is our honor to be able to do so. when paul ryan and i become president and vice president, and i mean when we become president and vice president -- [cheers and applause] we will do everything in our power to keep america strong, to restore the values that make our homes the center of society, to keep america strong and have a military so strong no one

would ever think of testing it. that is the america we see. we make that commitment to you. we need your help! we need to win ohio! get your friends to help us win ohio! we win ohio, would keep america out the hope of the earth! thank you very much, you guys. lancaster, thank you very much! thank you! [cheers and applause] ♪ >> ♪ i was born free i was born free born free ♪

[captions copyright national cable satellite corp. 2012] [captioning performed by national captioning institute] ♪ i was born free i was born free ♪ ♪i was born free ♪ i was born free i was born free i was born free

born free ♪ ♪i was born free i was born free ♪

[captions copyright national cable satellite corp. 2012] [captioning performed by national captioning institute] ♪ i was born free i was born free born free ♪

born free i was born free ♪ ♪ ♪

♪ ♪ sunshine is going to wash my blues away ♪

♪ ♪ i do not think anyone is going to miss any any way boeotian is my only dedication -- the ocean that is my only dedication ♪

[applause] >> what a crowd. thank you, guys. [applause]

>> senator mccain talks a lot about drilling, and that is important, but we have 3% of the world's oil reserves, and we use 25% of the world's oil. that means we cannot simply drill our way out of the problem, and we will not be able to deal with the current crisis if the only solution is to use more fossil fuels that create global warming. we will have to come up with alternatives. that means the united states government is working with the private sector to fund the innovation that we could export to countries like china that need energy and are setting up one coal power plant week. we need to help them create the energy they need. >> income, you might not have noticed, but we have lights around here. >> i am just trying to keep up with john.

>> waved like that at me, and i will look at you. >> here is a followup. it is a simple question. should we find in manhattan-like project, or 100,000 garages the kind of innovation that developed silicon valley. >> i think research and development on the part of the united states government is inappropriate. once it gets into productive stages, we should turn it to the private sector. >> before president obama and mitt romney face questions from undecided voters, what's the first presidential debate 4 president obama from our archives. . 10:40 eastern, bill clinton,

ross perot and president george h. w. bush. tuesday, watched president obama and mitt romney in their town hall debate. coverage begins with 7:00 p.m. eastern. today, we are asking what is your favorite moment from a presidential town hall debate. join the discussions with others are saying. >> wednesday, the supreme court heard fisher verses the university of texas at austin, a case that could determine the future of affirmative-action policies in higher education. abigail fisher was the night mission to the university in 2008. she sued, arguing that the use of race violates the guarantee of equal protection. a previous court ruling allows race to be one factor considered to achieve diversity.

this is one hour, 20 minutes. >> well, i get to say that this is case number 11-345, fisher against the university of texas at austin. and you get to say -- oral argument of bert w. rein on mr. chief justice, and members of the court, and may it please the court, the central issue here is whether the university of texas at austin can carry its burden approving that its use of race as an admissions- plus factor in the consequent denial of equal treatment, which is the central mandate of the equal protection clause, to abigail fisher met the two tests of strict scrutiny which are applicable. first -- >> mr. rein, before we get to that, because the court is supposed to raise it on its own

-- the question of standing. the injury -- if the injury is rejection by the university of texas, and the answer is no matter what, this person would not have been accepted, then how is the injury caused by the affirmative action program? >> well, justice ginsburg, the first injury that was before the court was the use of a system which denied equal treatment. it was a constitutional injury, and part of the damage claim was premised directly on the constitutional issue. >> how do you get past texas v. lesage with that injury, which says that mere use of race is not cognizable injury sufficient for standing? >> lesage was litigated on its merits, and the question was whether lesage could carry his case when -- on summary judgment when it was apparent that his complaint, which was that he was denied access to the

graduate program at the university of texas, was not sustainable. as i said -- and there are several factors in this case that are quite different. first, there is a constitutional injury as such, and the court has recognized it. second, the fact premise, she could not have been allowed in under any circumstance, was never tested below, wasn't raised below. it comes up in a footnote in >> can i go to another side? she's graduated. >> correct. >> she disclaimed the desire after her application to go to the school at all. she was permitted to apply for the summer program and get in automatically, and she didn't, correct? >> no, that's not correct, your honor. she -- she was not automatically admitted. she was considered for the summer program and rejected. you are talking about the cap program, where she could have attended a different university in the texas system, and had she been able to achieve -- >> but she's graduated. >> she has graduated. >> injunctive relief, she's not going to get. so what measure of damages will she get or will she be entitled to? >> well, that issue, of course,

is bifurcated, and we've reserved the ability to >> but you have to claim an injury, so what's the injury >> well -- >> that you're claiming that would sustain a claim of damages? >> the denial of her right to equal treatment is a constitutional injury in and of itself, and we had claimed certain damages on that. we -- we started the case before it was clear whether she would or wouldn't be admitted. >> you still haven't answered how lesage gets away from that >> well, if there's >> but if there's a -- give me another. >> well, i think -- >> damages question. >> on the -- if we then, on remand, were to assert damages contingent upon the fact that she should have been admitted to ut and was not admitted, we would then have to prove that but for the use of race she would be admitted. that's the thrust of lesage. whether we can prove it or can't prove it is something you can't tell on this record. it's merely asserted. and i would point out that texas said below, there was no way to determine that issue without >> what damages? >> we've had cases involving alleged discrimination in state

-- state contracting, and we haven't required the person who was discriminated against because of race to prove that he would have gotten the contract otherwise, have we? >> no, sir. >> it's -- it's been enough that there was a denial of equal protection. >> that is our correct, and that is our first premise. and i would say that the same issue was raised in bakke. and in bakke, the contention was he couldn't have gotten into the medical school; therefore, he has no case. the court said, in footnote 14 to justice powell's opinion, that's a matter of merits; it is not a matter of standing. i think in parents involved, the same type of contention was made with respect to the louisville class plaintiffs whose son had been admitted to the school of his choice, and the court said damages are enough to sustain standing. there is a live damages claim here, and i don't think there is a question of standing. >> her claim is not necessarily that she would have been -- would have been admitted, but that she was denied a fair chance in the admission lottery.

just as when a person is denied participation in the contracting lottery, he has suffered an injury. >> yes, justice scalia, i agree with that. >> if you are going to the merits, i want to know whether you want us to -- or are asking us to overrule grutter. grutter said it would be good law for at least 25 years, and i know that time flies, but i think only nine of those years have passed. and so, are you? and, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on? >> justice breyer, we have said very carefully we were not trying to change the court's disposition of the issue in grutter, could there be a legitimate, a compelling interest in moving -- in using

race to establish a diverse class. what -- the problem that we've encountered throughout the case is there are varying understandings, not of the legitimacy of the interest, but how you get there; is it necessary to use race to achieve that interest; what does a critical mass >> so your question is whether -- your point is, does your case satisfy grutter? is that what you're arguing? >> we litigated it on that basis, yes. >> well, how do you want to argue it right now in the next ten minutes? i'm interested because i have a very short time to get my question out, and i need to know how you are going to argue it. >> well, justice breyer, our argument is we can satisfy grutter if it's properly read. what we've seen -- >> may i ask you on that specifically, let's take away the 10 percent solution. suppose the only plan were the one that is before the court now, no 10 percent. this is the exclusive way that the university is attempting to

increase minority enrollment. then, if we had no 10 percent solution, under grutter would this plan be acceptable? >> well, i think that there would be flaws under grutter even if you assumed away something that can't be assumed away because it is a matter of texas law, that is, there is a top 10 percent program, and that -- >> well, then the question is can you have both? but it seems to me that this program is certainly no more aggressive than the one in grutter -- it's more -- in fact, more modest. >> well, i don't agree with that, and let me explain why. in order to satisfy grutter, you first have to say that you are not just using race gratuitously, but it is in the interest of producing a critical mass of otherwise underrepresented students.

and so to be within grutter framework, the first question is, absent the use of race, would we be generating a critical mass? to answer that question, you start -- you've got to examine in context the so-called soft factors that are in grutter. you know, are -- is there an isolation on campus? do members of minority feel that they cannot speak out? >> the one social studies that this university did said that minority students overwhelmingly, even with the numbers they have now, are feeling isolated. so what do -- why isn't that even under your test? we can go back to whether substantial evidence is adequate, is necessary, or not. why does their test fail? >> well, the survey was -- a random survey. it's not reported in any systematic way. they evidently interviewed students. and it was all about classroom isolation. it wasn't about >> was it done before or after they announced the decision to reinstitute racial quotas?

>> it was done after president faulkner had made the declaration they were going to do it. it was done before. >> which came almost immediately after our decision on grutter. >> on the -- i believe, on the same day. >> and by the way, do you think that grutter -- this goes to justice breyer's question -- do you think that grutter held that there is no more affirmative action in higher education after 2028? >> no, i don't. >> was that the holding of grutter? >> i agree it might, but i want to get to the question, see what i'm trying to pinpoint, because we have such a limited time. and to me, the one thing i want to pinpoint, since you're arguing on that this satisfies grutter if properly understood, as you say that. in looking up, we have a two- court rule. and two courts have found, it seems to me. that here there is a certain -- there is no quota. it is individualized. it is time limited.

it was adopted after the consideration of race-neutral means. each applicant receives individual consideration, and race did not become the predominant factor. so i take those as a given. and then i want to know what precisely it is that grutter required in your opinion that makes this different from grutter, in that it was not satisfied here? the ones i listed two courts say are the same. so maybe there's some others. >> i am not sure we agree with those courts. >> we have a rule that two courts say it, we are reluctant to overturn it. that is why i mention it. >> considering the case of alternatives, it worked as well >> there are facts and there are back. if i might try to answer your question, there was no effort to try to establish even a working

target for critical mass. they simply ignored it. they never ask the question, absent the use of race can we generate critical mass? we-- i mean, that's a flaw think is in grutter. we think it's necessary for this court to restate that principle. now, whether that -- >> that -- that's a normal fact that we accede to two-court holdings on: whether there is or is not a critical mass? >> no. i -- >> it's a weird kind of a fact. >> and i'm -- i'm not saying -- >> it's an estimation, isn't it? a judgment? >> justice scalia, that is correct. and in addition, the courts didn't find whether a critical mass -- >> so could you tell me what a critical mass was? i'm looking at the number of blacks in the university of texas system. pre-grutter, when the state was indisputably still segregating, it was 4 percent. today, under the post-grutter

system, it's 6 percent. the 2 percent increase is enough for you, even though the state population is at 12 percent? somehow, they've reached a critical mass with just the 2 percent increase? >> well, we don't believe that demographics are the key to underrepresentation of critical mass. >> no -- putting aside -- i don't -- i'm not going to quarrel with you that if demographics alone were being used, i would be somewhat concerned. but you can't seriously suggest that demographics aren't a factor to be looked at in combination with how isolated or not isolated your student body is actually reporting itself to feel? >> well, i think if you start to split out subgroups of minorities, you mistake i think what i think is the proper thrust of grutter, or at least ought to be. >> it might be -- it might be insulting to some to be thrown into a pot. >> why -- why don't you seriously suggest that? why don't you seriously suggest

that demographic -- that the demographic makeup of the state has nothing to do with whether somebody feels isolated, that if you're in a state that is only 1 percent black that doesn't mean that you're not isolated so long as there's 1 percent in the class? >> certainly -- racial balance -- >> i wish you would take that position, because it seems to me right. >> justice scalia, racial balancing is not a permissible interest, and we are constantly -this court has constantly held not a permissible interest. and that is something we certainly agree with. trying to respond to justice sotomayor and in the framework of grutter, what you're looking at is, do you -- does this person, member of a so-called underrepresented minority -- it's a concept we don't necessarily accept, but it's texas's concept -- are they isolated? are they unable to speak out? and i think we've always said if you have a very large number, as texas did in 2004 when they ostensibly made the decision to reinstitute race, they had a 21 percent admission percentage

of what they called the underrepresented minorities. they also had about an 18 percent admission ratio of asian-americans. so on campus, you're talking about -- about 40 percent of the class being minorities. >> but the test is -- the test is, in your opinion -- i have to write this in the opinion, you say -- the proper test of critical mass is is the minority isolated, unable to speak out. that's the test. and it wasn't in grutter or was in grutter? and in your opinion, it was in grutter. >> yes. it said expressly in grutter. >> isolated. all right. and the reason it was satisfied there and not here is? >> in grutter, the court assumed that the very small number of admissions, minority admissions, looked at as the whole -- and it was looked at as a whole, only as a whole in grutter -- would have yielded about 3 or 4

percent minority admission in a class of 350, which means about 12 to 15 students -- >> so what are you telling us is the standard of critical mass? at what point does a district court or a university know that it doesn't have to do any more to equalize the desegregation that has happened in that particular state over decades, that it's now going to be stuck at a fixed number and it has to change its rules. what's that fixed number? >> we -- it's not our burden to establish the number. it was the burden of the university of texas to determine whether -- >> well, they told -- they told the district court. they took a study of students. they analyzed the composition of their classes, and they determined in their educational judgment that greater diversity, just as we said in grutter, is a goal of their educational

program, and one that includes diversifying classes. so what more proof do you require? >> well, if you are allowed to state all the grounds that need to be proved, you will always prove them, in all fairness, justice sotomayor. the question is, they have -- >> well, but given it was in the evidence, what more do you think they needed? i think i hear all you saying in your brief is the number's fixed now, they got enough, no more is necessary. >> what we're saying in the brief was they were generating in fact a very substantial number of minority presence on campus. >> that's enough now. >> and -- >> that's what you're saying. >> no. and that immediately thrust upon them the responsibility, if they wanted to -- you know, essentially move away from equal treatment, they had to establish we have a purpose, we are trying to generate a critical mass of minorities that otherwise could not be achieved. >> tell me -- tell me what about their use of race did not

fit the narrow tailoring, not the necessity prong as you've defined it, but the narrow tailoring that grutter required? how is race used by them in a way that violated the terms of grutter? >> and for this purpose >> assuming that the need is there. i know you're challenging the need. >> put -- put aside whether this was necessary and whether it was an appropriate last resort in a quest for diversity and critical mass, because grutter's not without limits. but i'll put that aside and let me come directly to your question. first of all, if you think about narrow tailoring, you can't tailor to the unknown. if you have no range of evaluation, if you have no understanding of what critical mass means, you can't tailor to it. >> so you have to set a quota for critical mass? >> no. there's a huge difference, and it's an important one that is not well put out by the university of texas. having a range, a view as to

what would be an appropriate level of comfort, critical mass, as defined in grutter, allows you to evaluate where you are -- >> so we won't call it a quota; we'll call it a goal, something grutter said you shouldn't have. >> well, justice sotomayor, i think it's very important to distinguish between the operative use of that range, in other words, that's where we are, and we're going to use race until we get there every year in consideration of each application, which was a problem. >> boy, it sounds awfully like a quota to me that grutter said you should not be doing, that you shouldn't be setting goals, that you shouldn't be setting quotas; you should be setting an individualized assessment of the applicants. tell me how this system doesn't do that. >> this system doesn't -- i mean, it's not narrowly tailored because it doesn't fit. there are certain forms of grutter that it follows. it -- >> mr. rein, do you understand what the university of texas thinks is the definition of a critical mass? because i don't. >> well, it simply reiterated the language of grutter. they have no definition. they can't fit >> mr. rein, it seems to me that in your talking about critical mass, you are relying entirely on the 10 percent is enough.

they don't -- they got minorities through the 10 percent, so they don't need any more. and i tried to get you rigidly to focus on -- forget the 10 percent plan. this is the entire plan. >> well, let me tell you that if you look outside the top 10, at the so-called ai/pai admits only -- forget the top 10 for a minute, they were generating approximately 15 percent minority admissions outside the top 10, which is in -- above what the target was in grutter. so this is not grutter on its facts. it's vastly different. this is a >> because of the 10 percent. >> no. i am talking about only the non- top 10% of admissions. 15% of those were so-called underrepresented minorities. this is without the top-10. the top-10 is also a major generator of admissions. >> this was before the adoption

of the plan. >> that was correct. >> now i am confused. i thought the figure was a ride that with the 10% plan. >> no. with that 10% plan, it is much higher. in 2004, it was much higher with asians, it was over 30%. i am isolating to non- top 10 in admissions. the average close to that over time. the minority presence is a combination of two, in fact, but the system, which was adopted, as texas says, the first thing they tried, to accommodate to their loss of the ability to use race that came up directly. that was their first response. to the to a more balanced

admissions program between academic and personal achievement index. >> could you comment on this, then i hope we could get back to the question from justice scalia. you argue that a race conscious ignition plan is not necessary because it did so few people. so few minorities. i had trouble with that. what is the problem --? let's assume it resulted in the admission of many minorities. then you come back and say this shows we or wrongly excluded. >> assuming consistency, are you saying you should not impose this hurt or this injury generally for so little benefit. is that the point.

yes, that is part of it. the second is the question of reasonably available alternatives. if we take texas at their word, and they say that they are satisfied with the way they apply race, we tried to measure what difference it is making, and could you achieve the same thing with a reasonable alternative. that was a question as in grutter. >> the race-neutral alternative is the 10% plan? >> it includes an extension of the 10% plan. it was a major generator of minority admissions. >> is it really race-neutral. the only reason they can stick to the 10% plan was to increase minority enrollment. the only way it works is if he

were to have some -- heavily separated tools. worse than that, i mean if you want to go to the university of texas under the 10% plan, you go to the low performing schools. you do not take challenging courses because that is how you will get in to the 10%. maybe the university is concerned that that is an inadequate way to deal with it. >> justice ginsburg, a lot of that is speculative. there is nothing in the record to support that. they have never surveyed the pac-10. >> 10% plan is not been posed by the university. it is not their option. it is not them saying this is not good for education. it is imposed by state law. anybody that is in the top 10%

of any school in the state gets into the university of texas. >> in the fifth circuit said you cannot disregard the consequence because it is a battle of fifth -- of rock. -- of law. that is not the only alternative. one simple alternative is looking at the yield. what percentage of the amended minorities are they encouraging? >> this underlines my thing here, and i did look up the figure. before the 10% plan, and the african-american side it averaged 5% a year pretty steadily. after 10%, it went down a little bit, not a lot, but down to 3.5%, maybe 4% maybe, that they introduced grutter and it is back to 5%. is that a lot? is that a little?

there are several admissions officers, several thousand universities, what are we going to say that was not shown in grutter that will not take hundreds or thousands of these people and have federal judges dictating the policy of the mission for these universities? i am looking for certainty. i saw what happened. we saw the numbers. >> i will answer your question. >> you could answer it later, if you want, or not answer it at all. [laughter] >> i am perfectly happy to answer your question. i think the increase you are looking at was pre-grutter, generated before 2004. they do not depend on ways to do it. that is why we say there is an alternative, which would serve increasing yield, or reading the pai, a critical element, putting

more emphasis on the social and economic factors. >> now, will tell the university is how to run and way qualifications. >> it is not the job of the court to tell them how to do it. it is their job to examine the alternatives available to them. >> but you defend held the use of race overwhelmed those other factors. >> the question is not whether it overwhelms. they admit there are admissions that would not have taken place before. somebody else would have had that place but for the use of race. to answer the question fully, you have to analyze race-neutral alternatives, and if you look at parents involved, that was the critical question.

>> perhaps you could summarize by telling us from your point of view, this plan still scrutiny because the objective is inappropriate or ill-defined, or because the implementation is defective. which, or both of those are you arguing? >> we have argued both. >> in what respect does the plan fail the strict scrutiny under both of those categories? >> under the first category, was it a necessary means of pursuing a compelling interest, we do not believe they have shown any necessity for doing what they're doing. race should have been a last resort. it was a first resort. they failed in every respect. if you go to narrow tailoring,

what we say is if they did not consider alternatives, and their treatment of asian-americans and hispanics makes an incomprehensible distinction. they say we do not worry about asians. there are a lot of asians. is a demographic measure. if you are trying to find individual comfort levels, breaking it down between african-americans and hispanics -- >> you are the ones in your brief who has assumed that their value in different races differently, but asian numbers have gone up, under however they have structured this pai, and as i understand their position, race is balanced against other issues like social economics, the strength of class's people took. it is not a stand-alone. even a white student, i

presume, who goes to entirely black or latino school and becomes class president would get points because he has or she has proven that they foster or canned dealing in a diverse environment. that is how i understood their plan. it is not because of race. it is combining that with other factors. >> there is a plus because of race. there are many other factors. the white student president of the class in an ethnically different school is a measure of leadership. leadership is an independent factor. he is not getting that point because of his race. he is getting that point because of his leadership. that is race-neutral criteria that could work for anybody. race is an independent and-on --

add-on. they say they could contextualized. it is not narrowly tailored and it gives mistreatment to asian americans because they are minorities as well. if it depends on the question factor, there is no way to fit with they are doing to the solution of the problem, which may use as a major foundation of their proposal, which is the non-diverse class compared cementum there's no correspondence there. i see my time is up >> we will afford you rebuttal time. mr. garre. >> thank you. for two reasons, it is held under this court. it is indistinguishable from individualized considerations of africans in their totality of tell been grutter.

>> i've put that in the narrow tailoring category. it is not the necessity kong and -- prong and the most of his arguments have been centered on that. >> that was the second point. the holistic process is a necessary counterpart to the top 10% loss, and were systematically to offset the systematic drawbacks of that law in the cheating and interest that is indisputable in assembling a broadly diverse student body. >> i need to figure out what these numbers mean. should someone who is one quarter hispanic check the hispanic barks or some other box? >> your honor, there is a multi- racial blocs.

>> i suppose one person who is 1-quarter hispanic's determination would be that he is one-quarter hispanic and would check that box. >> they would make that determination themselves. if anyone violated honor codes, -- >> would it violate if they were one-eighth hispanic? >> i do not think it would appear that i don't think that makes a difference in grutter. >> you do not check in any way? >> we do not, and no other college does. >> how do you know you have a 15% minority? >> the same with the determination is made in any other situation. >> what is that way? >> do they have to sell

identified? >> people do not. -- self-identified? >> they do not. >> how do you know they're not just a critical mass class-by- class terror how they figured out if a particular class does not have enough? -- class-by-class. how do they figure out if a particular class does not have enough? >> the university has never asserted a compelling interest in any single question. it simply looks the question of diversity as one dimension. >> i do not know what you're talking about. it is either a factor that is barely used, or it is not do they look to individual classroom diversity or not, and if so how do they decide? >> this court, in grutter, said when given -- given fact, could

not overrule. >> how did the to the question back to their require everybody to check a box? do they have somebody figured out this person looks 1-32nd hispanic and that looks enough? >> they did a study that into account the same considerations in in a moment. >> what kind of a study. >> it is in the supplemental joint appendix. >> it does not explain how they go out classroom-by-classroom. >> there are student lists in each classroom. >> student lists that have raised identified? >> no, your honor. every university knows what

student is taking the classes. if you want to gauge better city, go back to -- >> what they checked on the form. >> your honor -- >> that is a yes or no question. you go back to what they said on the form? >> that is information available to the university if they check it on the application. i want to be clear on this study. it is only one of many information points. >> on class from diversity, how does the non-10% for their diversity? maya understanding is the university has over -- my understanding is the university has over 5000 class's that classified as small, and the total number of african- americans and hispanics it that it was just a little over 200. how can that possibly do more

than a tiny amount to increase class and diversity? >> first, that two hundred number is erroneous. there have been many more minority candidates. >> per class? >> not on a per-quest basis. with the university found was shocking isolation. >> how many non--top -- non-, 10% at issue are limited in each class? >> we did not look at that issue, but in trying to find holistic -- we did the study before the planet and she was adopted. at that time, there was nobody to admit -- no way to it that you're taking race into account. it to the african-american, 90%

-- >> i do not believe i understand your question. you know the total number of african-americans in the engineering class. >> yes, your honor. >> and the total number admitted under the top 10% class? >> yes. >> subtract eight from b, and you will get c. >> let me explain why the university did not look at that. the time it was conducted, it was before the holistic issue was adopted. in 2003-2004, the determination would not have been as important in just finding out african- americans or hispanics are under-represented minorities present at the university. >> what is the number? what is the critical mass of african-americans and hispanics to the university did you are

working to? >> your honor, we do not have one. >> how will we supposed to tell if the plan is nearly tailored to that road? >> looking at the criteria in grutter, which rejected that you could come up with a fixed percentage. >> this is very from group-to- group, from state-to-state tax is contextual. it could very -- state-to-state? >> is contexture will. it could very. -- is contexture will. it could very. >> is the critical mass dependent on the breakdown of the population of texas? >> no. not at all. it is looking to the educational benefits of diversity on campus. i think we agree on what that means. >> mr. garre, could you explain

the critical question, why did the 10% solution not suffice? why was that not enough? >> let me make a couple points, your honor. if you just looked at the numbers -- we do not but the numbers -- but after seven years, relations have remained stagnant or worse. since 2002, african-american enrollment has dropped to 3%. under the top 10% plan, taking the top 10% of a racially identified high school like a dead person there looks ok and paper, but it does not guarantee diversity that produces educational benefits. >> why does it not?

>> because, your honor, as is true for any group, the harvard plan approved in bakke specifically said you want different viewpoints from individuals within the same racial group just as you would from outside of that. >> what kind of the points that political viewpoints? >> any kind of experience that they grow up with. >> this has nothing to do with racial diversity. you're talking about something else. >> your honor, it impacts the educational benefits of diversity in this sense. the minority candidate that is shown that he or she has succeeded in an integrated environment, has shown leadership and community service is precisely the kind of candidate that will come on campus, help to break down racial barriers, or cross racial lines. >> all that is likely to

included in the 10% will. incidently, when was the blood that? >> 1998, your honor -- when was the rule adopted it? >> 1998, your honor. if you look at the break down, i do not think it is disputed in this case to this point that although the percentage plan helps with minority admissions, by and large the minorities that are in the did tend to come from segregated, racially identified schools. >> i thought the purpose of affirmative action was to help students from underprivileged backgrounds, and you make a different argument that i do not think i ever seen before. the top 10% plan applies to hispanics, and african- americans, but you say it is faulty because it does not admit enough hispanics and african- americans that come from

privileged backgrounds, and you have the example of the child that is the successful -- of successful parent in dallas. let's say the parents have an income that puts them in the top 1% of earners in the country, and they both have graduate degrees, they deserve a leg up against an asian or white applicant whose parents are absolutely average in terms of education and income? >> no, your honor. the example comes almost word- for-word from the harvard plan that this court approved in grutter. >> how does that question's answered the bell? >> our point is that we want minorities from different backgrounds. we go out of our way to recruit

from disadvantaged they crowned -- backgrounds that >> will you are saying is what counts is raised above all? that is a necessary response to justice alito's question. >> what we want is different experiences. >> underprivileged of a certain race, and privilege of a certain race. that is race. >> no, your honor, that is not race. it is just the opposite. in the grutter decision -- >> the reason you are reaching for the privilege is that so members of the race who are privileged can be represented. >> it is members of the same racial group bringing different experiences. if you took any racial group and an an admission group -- had an in mission group the only admitted people from a particular -- admission group that only admitted people from

it particular background, you would want people from a different perspective. >> i understand my jab under our precedents to determine whether your -- job under our precedents is to determine whether your use of race is narrowed to a critical mass, but you not tell me what the critical mass is. >> what the president says is a critical mass is an environment in which -- >> when will we know they do have reached a critical best bet -- critical mass? what is the end point? >> this question implicates grutter itself, and i understood not challenging that diversity. what we looked into is feedback

directly from students racial isolation they experience. >> you conduct a survey and asked students if they feel racially isolated and that is the basis? >> no no, that is one of the things we love that. >> what are the others? >> we look of the enrollment data that showed african- american the moment at the university of the texas-based 23% in 2002. >> -- at the university of texas dropped to 3% in 2002. >> at what level with satisfy critical mass? how my supposed to decide whether you have an environment where particular minorities do not feel isolated? >> part of this is a judgment that educators are going to make. >> when you tell me, that is good enough. >> not at all, your honor.

the invalid data, the feedback from the students, taking -- enrollment data, the feedback from students -- >> would 3% be enough in new mexico where the african- american population is around 2%? >> i do not think it would. it is not tied to demographics. it is understood that we are not pursuing demographics. -- key facts have been undisputed. >> mr. garre, i think the issue my colleagues are asking is at what point and when do we stop deferring to the university's judgment that race is still necessary. that is the bottom line of this case. you are saying, and i think

rightly, that you can not set a quota, because that is what our cases said you could not do. if we are not going to set a quota, what do you think is the standard that we applied toake the judgment? >> the standard you would apply is the one set for begin grutter, -- said forward in grutter, looking to if there was an environment where they do not feel like spokespersons for their race, cross-understanding is promoted, and the benefits of diversity are realized the reason the university of texas -- realized. the reason the university texas came to that not been not -- >> that holds for another 16 years? >> we do not read grutter as

establishing that time clock. >> you are appealing to grutter, and that is what it said. >> we are guided buy it here, at least the advocates are, and we are looking at this every year, and once we reach that point, of course we will stop. >> some of the stuff that grutter says you agree with, and saw the stuff you do not agree with. >> before your time runs out, the other point that i would like you to answer is the argument based on parents involved, that the game is just too small to warrant using racial criteria. you have the 10%. you do not need more. how do you answer the argument that the game is too small? >> i say the consideration of race has increased risk of diversity -- rage -- increased racial diversity.

african-american enrollment doubled been to thousand two through 2004, so this has had an impact. >> in terms of diversity, how'd you justified lumping together all asian americans? the have a critical mass of filipino americans, the cambodian-americans that >> -- americans? >> it can be spelled out. >> the you have a critical mass? >> we look at whether we have a critical mass of underrepresented minorities, precisely what the grutter asks us to do. that could make it quick point and jurisdiction -- >> before you get to that, suppose you identified a numerical category, designation for critical mass, during the

course of the admissions process, can the admissions officers check to see how close their coming to this? >> no, your honor, and we do the -- do not. >> you can not? >> we would not been monitoring the class. >> that happened in grutter. are you saying it is not correct? >> no, your honor. what i am saying is we do not have that problem. >> i am asking whether or not you could do that. >> i do not think so, because it was understood to be for the purposes of reaching a demographic. >> they do not monitor, but raises the only holistic factor that appears on the cover of every application, right? >> all of the factors are taken into account. >> i am started the question is

whether race is the only one of the holistic that it? >> eni make one point and jurisdiction? >> -- can i make one point on jurisdiction? >> we will give you a little more time since we will give your friend more jurisdiction -- more time. >> it makes clear that ms. fisher was not are you arguing but she does not have standing o? >> ps. >> he would just that in your briefing? >> you said it is hard to see how she cliff establish that. >> another come from is the opposition critic comes from the opposition. during lead it began with

this request is on page 79. it focuses specifically on the request for the return of admission fees. the reason why it is not enough is that she would have paid the admissions be no matter what policy of the university had. >> what about our jacksonville case? >> back injury is not sufficient in a backward looking case where you only have monetary damages. they involved four were looking cases are people -- forward looking cases. >> your friend told us these remedial damages had been segregated out of the process and are still available. >> that is not an answer for jurisdiction. it is true that we go improve

damages. the complete makes no doubt that the only request is a request for a mission fees. it says that explicitly. it relieved that does not remedy the injury suffered cannot draft a plaintiff into federal court. >> part of the injury she suffered is that the only injury. she had to pay an emissions before a process in which she was not treated fairly -- a fee for a process which was not treated fairly. >> the payment of application does not remedy the injury that she is complaining about. >> if this is easy, do it. if not, don't. i want to use accurate numbers.

i want to find out how many universities actually use a grutter type process. one of your admissions officers is the only place that has the information. i didn't want them to do it. you are both here. if you can agree on roughly what the number is i would like to know it. otherwise i can use re-grutter numbers. >> i do not have specific numbers. this recognizes that the best universities in america have been using this for 30 years or more. >> since we're asking questions, this is a very ambitious racial program here at the university of texas.

how many people are there in the affirmative action department of the university of texas? do you have any idea? it would be a lot to people to monitor all of these classes and do all these assessments of race. it probably a large number of people would be out of a job if we suddenly went to justin% -- po 10%. >> will monitor the racial climate on campus. >> i do not have the specific number. it is an important part of improving the educational experience for all students in a matter what their race. >> thank you. >> it is important to focus on

what is it not at issue. a petitioner is not challenging thater's reaffirmation student body diversity is a compelling interest that can justify the consideration of race in university admissions. colleges and universities have relied on that principle. it is a vital interest to the united states said they continue to be able to do so. they are insuring that the nation's universities produce graduates were going to be effective citizens and effective leaders in an increasingly averse society in global markets. >> does the united states african american and hispanics from affluent backgrounds deserve a chance? >> here is what is going on with respect to the admissions

process. i think this is a bit of context. the top 105 plan produces some diversity. the university cannot control that diversity in the same way it can with respect to the 25% for the holistic process. my understanding that the universities are looking to do is not to grant a preference for privilege but to make individualized decisions about applicants to look directly for the educational mission. they will look for individuals who will play against racial stereotypes just buy what they bring. the african-american fencer. hispanic students as master classical greek. but also look for those with a demonstrated track record. >> yet to applicants that are the same in every respect, they

come from affluent backgrounds come up educated parents, one falls into the group with a preference in the other does not. the last position available under the texas plant, one gets in and one does not appear to do you agree with that? not.oes do you agree with that? >> i think there is a automatic preference in taxes. this is right on page 398a of the appendix. they describe an applicant's race only considered that the student will contrary to the boulder diversity. >> the two applicants are entirely the same in all other respects. it is the ability to get a racial preference means anything, it certainly has to

mean that in the hypothetical alito, theustice and lega minorities to think it's been an the other does not. >> this is a common -- the minority student gets in and of the other does not. this is common. >> it is a matter of two equal and all other respects. what is the racial preference mean if it does not mean the minority applicant winds and the other one loses? >> there may not be a racial preference. >> i do not understand this argument. i thought the whole point is that sometimes race has to be a typewriter.

say the district court found that race is indisputably a meaningful factor that can make a difference. if it does not make a difference then we have a clear case they're using race in a way that does not make a difference. it has to be the race is a determining factor. unless it is a determining factor in some cases, it they are using race when it does not serve a purpose at all. >> it does not make a respect to every minority applicants. >> and it is different in some cases. >> it does. >> this is exactly right.

it is not a mechanical factor. with respect to the implementation of this compelling interest, it is clear in he is challenging this. this meet every requirement and bejesus this. there is no quota. everyone compete against everyone else. it is individualized consideration. they do not monitor the racial composition. >> the supposition is surely a possible -- impossible under this.

there are not identical mechanical factors that except the 10% plan. the factors are so varied intentionally set that no to applicants ever could be identical in the sense they hypothesized. >> the specific individualized judgments. >> as i understand it, braced by itself is taken into account. they take race into account. the district court found that race makes a difference. >> and makes a difference by casting the accomplishments of the individual applicant in a potential flight. what the universities are looking for with respect to this consideration is what is this

individual going to contribute to our campus? race can have a bearing on that. this is what they can bring to the student governments or to the campus. >> if there are ever to applicants with the gpa, the grades,, leadership, activities, awards, community service, economic status, family responsibility, single-parent home, s.a.t. score, if he had a situation where those things work absolutely identical then the person would be admitted on the grounds of race. >> not necessarily.

>> the money as you another question. -- let me ask you another question. can you expand plain your rotc argument for me? >> our military effectiveness depends on a pipeline of well qualified and well-prepared candidates from diverse backgrounds who are comfortable exercising leadership in a diverse set in. >> you have a marginal candidates who wants to go to the university of texas and is interested in rotc. how does this impact the military?

>> the point of educational diversity is to create an environment in which everyone develops inappropriate sense of citizenship and the capacity to lead in a racially diverse society. it will benefit every rotc apple can. 43% of the court comes from the rotc. is this to the vacant part. >> what is your view reject it is a significant part. >> what is your view when the university has obtain critical mass? >> it is not a number. it would be very ill-advised. >> i would like to know what it is.

we have to decide if it is tailored to achieving critical mass. >> i do not think this is a situation in which the court of boards complete deference to the university's judgment. does the level of diversity it needs. they have to make their own independent judgment. the way to go about it is to look at the information that the university consider it. check in the information about the composition of the class. it could be a backlash and diversity. it could be retention and graduation rates. it could be specific to the universe the context and

history. but the court has to do is satisfy itself that the university has substantiated its conclusion based on the information it has considered that it needs to consider race to further advance the educational goals that grutter has identified. i do think as the number of enrollees tire, at the university can do that. it will get harder to meet. i do not think there is a number. i do not think it is prudent to suggest there is a number. >> which probably stop calling it a critical mass. critical mass assumes numbers.

>> i agree that critical mass has taken on a light on its own that is not helpful. it is not focused the inquiry where it should be. it is important to the country that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that justice kennedy identified. our strength comes from people of different face, creeds, u niting to a more perfect union. that is what the university of texas is trying to do. it should be upheld. >> thank you. that is more than i expected.

we are seeking a level playing field. there are three things i want to touch on. there has been a lot of back and forth on standing. that really relates to marriage. we do not accept the premise of the footnote that she would not have entered under any circumstance. she was considered for the summer program. >> incentive relief and the return of the money. is that what is limited to? >> no. the point where we were riding in -- >> we said any and other damages is too speculative. is what you actually see in junk

debt relief and the return of the $100? >> we never had the opportunity. did you ask only for injuctive relief and the $100 specifically? >> the only specific number was the application fee. >> you would have paid that no matter what ta? >> you would have returned it for a free assessing of the application. because of the way it was bifurcated, we did not develop the additional damages.

what you he pointed out is there other kinds of financial entries that were not ascertainable at the time it was filed. >> she is going to get a better job because she went to a different university? >> that is one thing suggested. the court made this clear. let me go to another issue that i think i never concluded my answer. we recognize that there is an interest. it could be recognized it at all that what we are concerned about is universities like you'd

see and others have used it as a green light to use race, no end point, no critical mass to something that can be reviewed. as long as you do not cross determinative points and fixed quotas, you are ok. we do not think that is the way grutter was intended. it raises all kinds of red flags. flags. make a determination whether